Ghana and the African Human Rights Court: Why the Government should Act Fast.

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Yesterday, the Deputy Attorney-General granted a media interview after a Supreme Court hearing in the case involving Mr Alfred Woyome and the Attorney-General. In the interview, the Deputy Attorney-General told the world that the Supreme Court of Ghana had ruled that it does not recognise the African Court on Human and People’s Court (ACtHPR). He even went further to offer several grounds of justification for the alleged Supreme Court ruling.

As it turned out later, the Deputy Attorney-General’s claim appears to be inconsistent with what actually happened in the Supreme Court during the hearing. Contrary to his claim, the Supreme Court did not give such a ruling. In fact, we now know that the Supreme Court did not even consider the ACtHPR or its order, particularly, as the order was directed to the executive (not the Supreme Court).

First of all, I believe strongly that the views expressed by the Deputy Attorney-General on the subject does not represent the view of the government in which he serves. His view on the matter does not also reflect the long-standing position of Ghana in the comity of nations. As a matter of fact and law, the Supreme Court of Ghana could not possibly arrive at the decision attributed to it by the Deputy Attorney-General. Ordinarily, therefore, the Deputy Attorney-General could have been ignored entirely and the matter left to wither out naturally.

However, it would be harmful to ignore his pronouncement. This is why: Just as domestic law, international law, too, has its own sources of law. One of international law’s sources of law is treaty law – the agreement between states or international organisations. Another is ‘custom’. ‘Custom’ is constituted by those behaviours of States which, though not written formally as law, are considered as binding. One way of determining a State’s custom is to aggregate what some of that State’s public officials say (or do not say) publicly in their capacity as State officials. In other words, the Deputy Attorney-General’s public statement, yesterday, could be an index in determining Ghana’s position not just in respect of the ACtHPR, but also in respect of other international courts or tribunals.

Ghana often presents its citizens to serve in international organisations and tribunals. Of recent memory are Judge Akua Kuenyehia of the International Criminal Court (ICC), Justice Anthony Benin of the ECOWAS Court of Justice and Chief Justice, Sophia Akuffo, who has served as President of this very ACtHPR. Interestingly, we are currently presenting Prof Henrietta Mensah-Bonsu of University of Ghana to the ICC to be elected as Judge in a few weeks. From this, it is easy to guess, pretty accurately, the adverse effect that the Deputy Attorney-General’s statement stands to have on the calculation of Ghana’s customary law position on the recognition of these international tribunals and, consequently, on the acceptability of our future candidates (which, of course, may even include the Deputy Attorney-General himself) for such positions.

The international law and relations field has become more competitive than ever; so much so that Britain has, for the first time in over 7 decades, lost its seat on the International Court of Justice to its former colony – India. While India’s efforts cannot be ignored, experts have named Britain’s inward-looking Brexit policy as a factor in the historic loss. International respect, reputation and recognition no longer come easily, if they ever did. Nations, in a bid to be relevant and competitive, are becoming increasingly open and integrated than ever. Openness also means a deliberate effort by State officials, big and small, to be outward-looking (rather than inward-looking). All this requires lawyers, judges and public officials of the local polity to have a broader (rather than narrower) view of their national constitution and its workings. Ghana, the first country South of the Sahara to join the international world; the lead proponent of an African continental central government; and a trending beacon of hope for Africa in the outer world, cannot afford to be inward-looking at a time when outward-looking matters most.

Because of the enormous advantages that come with outward-looking and the concomitant disadvantages that come with inward-looking, it would not be a great idea for our authorities to ignore the statement made by the Deputy Attorney-General on their behalf as if it never happened. They should denounce (if not condemn) it; and reinstate Ghana’s long-standing position on its relationship with international tribunals, particular the ACtHPR.

Truly, it would be most appropriate if the Attorney-General, together with the Foreign Affairs Minister, could utilise the earliest opportunity available to unequivocally and resoundingly reinstate Ghana’s traditional position on the subject to the international community, particularly the African Union. Indeed, it would even be more reassuring if His Excellency, the President (who himself is an international relations expert and who, as Foreign Affairs minster in 2005, led Ghana to ratify the Protocol that established the ACtHPR) could lead this effort.

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Zimbabwe: This thing is a Gender Issue

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Yesterday, I said in a Facebook post that the events currently happening in Zimbabwe is a gender issue. Funny though it may sound, it is a gender issue. This rather long note is to explain that post.

The Military’s Visit

Let’s look at what is happening, critically. First of all, the military is not in for a regime change. They made it clear that theirs is “not a military takeover”. They don’t even seem to have a problem with President Robert Mugabe, the man who has their political and legal mandate. They said they’re “only targeting criminals around him”. Clearly, they are only in for a regime consolidation.

Indeed, they’ve not said anything about the First Lady, Grace Mugabe. Actually, they did – they didn’t think she’s a part of the President’s family. They told the whole world that the President’s family was “safe and sound” at the time that no one knew where the President’s “wife” was. We later heard that she’s believed to be in Namibia or wherever. Add this to the regime consolidation agenda; and you’d readily know that the military doesn’t think the Mugabe regime would be best consolidated under her. They think the Vice President, Emmerson Mnangagwa, would be a better protector of the regime than the First Lady whom everyone suspects is Mugabe’s favourite.

Interestingly, we’re getting to know the military’s reasons for not preferring the First Lady. The principal reason is that she was not part of the liberation struggle that brought Mugabe to power and saw an end to the white minority rule over 4 decades ago. The other reason, which is supplied by the dominant media (rather than the military), is that she’s extremely profligate and ostentatious – she is “Gucci Grace”. The other reason is that she’s a schemer and usurper, who “worked” her way to the top. Remember, they don’t seem to accuse Mugabe, the head of the regime, of any of these “ills”. Only Grace. I’ll show you how and why all this is about gender.

The Liberation Struggle

Grace Mugabe is 52. This means that she was still a baby when the liberation struggle that Mugabe would lead started. She was about 10 when Mugabe became the Chairman of the Zimbabwe African National Union (ZANU) group. She was barely a teenager when Mugabe was sworn in as Prime Minister. All this means she couldn’t possibly be a part of the struggle, even if she wanted to. But this is about age (not gender). Nonetheless, even if she was an adult at the time, she still couldn’t be at the forefront of the struggle like Mnangagwa and the other male comrades. The reason is gender. She’s a woman and society has made it impossible (if not extremely difficult) for a woman to be at the forefront of such struggles.

We can blame her for being a woman, but no one can deny that she, like Mnangagwa, spent her entire adult life toiling for the regime. But why is her contribution not recognised? The answer is gender. Society allocates roles based on gender. So, even before she was born, her role was well cut out and defined – she could be a secretary (not a boss). That’s the closest she could come to the top. And, if she performs that office well, she could become a “wife” to the boss. That’s it.

To drive home the point better, allow me to wax a little bit philosophical here. We often argue for “equal pay for equal work”. But, I think, the principle in that phrase should be deeper than ‘equal money’. The principle should be ‘equal recognition’. The gender issue should not be limited to the roles, as some may want to have it look like. It should also extend to the recognition that society gives to the roles, especially where the roles are hard changing and where a huge majority have already performed and are accustomed to performing those roles. Indeed, we don’t want women to be the only human beings who take care of the kids and the home. Because of this, we say “send the girl child to school”. That is great. Way to go. But, you see, there is this huge army of ‘girlchilds’ currently performing the house-wife roles. How do they get equality and justice? That is exactly where ‘equal recognition’ comes in.

If we, indeed, agree that the family is the nucleus of society. If we agree that there cannot be a great society without great families. Then, someone somehow must grow the family. And, if we ‘recognise’ the family, then, it is hypocritical on our part to keep according higher recognition to ‘non-family’ roles than to ‘family roles’. Then, it is hypocritical to give a higher recognition to the person who goes to talk in public for a few hours than to the person who takes care of the public talker, his kids and home the whole day and night back-to-back. Then, it is hypocritical to give a higher recognition to the politician than to the person who grows the families over which the politician lords. We need to give equal recognition to the roles, even as we boost the fight for de-genderisation of the roles. That is transitional gender justice. That is equality.

Now, let’s come back to Zimbabwe. Mugabe is 93 and Grace is 52. We’re dealing with an age gap of almost 40 years. She was Mugabe’s secretary. She probably excelled at that role (and, look here, I’m not responsible for what you’re thinking at this moment); and later became his wife and First Lady. Then, they recognised her as the head of the ZANU-PF Women’s wing. That’s all. That’s the highest recognition society is ready to give her. No one expects her to be President of Zimbabwe; certainly, not when the Mnangawgwas of this world are still around. Do you know why? The answer is gender.

Add the insane age-gap to the fact that she’s the leader of the ZANU-PF women’s wing. Go on, check the population of women in Zimbabwe and the ZANU-PF; and you’d immediately know (if you really want to) that she’s not really a “wife” to Mugabe. She’s probably the de facto President, while the 93-year-old male retains the recognition. You’d also know immediately that there’s no merit in the claim that she’s not contributed to the regime. Therefore, by saying that Grace has not contributed to the regime, the military, (and society for that matter) is simply refusing so recognise the role of women (be it secretaries, wives, First Ladies, head of women’s wing, whatsoever). It is just the same way that all societies always refused to recognise the army of women who took care of homes while the Mnangawgwas of this world were in the bush “struggling” for the liberation. The answer is simply gender.

Profligacy

She is accused of living a recklessly extravagant or wasteful life. I saw a short documentary titled “Gucci Grace”. It shows how much she spends shopping in Europe. The video also shows her sons, too, pouring a very expensive champagne on an even more expensive wristwatch. What this documentary doesn’t tell us, however, is that Mugabe himself has been an ardent client of Savile Row since the 80s. The documentary doesn’t also tell us that the sons in the video are also President Robert Mugabe’s sons. It tells us one thing: “A wise son brings joy to a father; a foolish son brings grief to a mother.” (Proverbs 15:20). So, the military, or no one for that matter, has a problem with the sons’ father, Robert. It is always Grace. Do you know why? The answer is gender.

Schemer

I’m not sure if this particular accusation is worth my time and keyboard. Look, which politician is not a schemer? Since when did they realise that she’s a schemer? What are the military chiefs doing in the Presidential Palace if not scheming to get their favourite into office? The accusation of scheming brings to mind what happened to another woman who got close to the Presidency, Joice Mujuru, Mugabe’s Vice President before Mnangawgwa. She was thrown out not just from the government but also from the party she served since she was a teenager. Her humiliation was for what? Scheming! It appears that everyone in Zimbabwe is allowed scheme except non-males. Do you know why? The answer is gender.

Conclusion

When I look at what is happening in Mugabe’s Zimbabwe, I see soldiers, I see ambitions, I see mismanagement, I see economic inequality, I see a stubborn 93-year-old man, I see die-hard pan-Africanists, I see the liberation struggle still going on, I see power struggle. But I see gender too.

Of SSNIT, UT Bank and Capital Bank: Board Accountability

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Ongoing discussions on the SSNIT, UT Bank and Capital Bank issues seem to suggest, strongly, that we don’t really appreciate the role of companies governing boards. Let me attempt a simplified explanation of an extremely sophisticated subject – corporate governance.

The beginning point of the explanation is that companies are, in the eyes of the law, like human beings. They’re artificial persons. They’re born (by incorporation), they can marry (through mergers), divorce (through break-ups or split-ups), give birth (to subsidiaries), form families and associations (by grouping), acquire property, sue and be sued. In fact, they die, too. As a matter of interest, companies are, in a sense, even more powerful than humans – they can live, like, forever and, also, (through branches) be at more than one place at the same time.

However, companies, unlike human beings, don’t have eyes, brains or hands with which to function and exercise the enormous power they have. This is exactly where governing boards (boards of directors) come in. Boards are the eyes, brains and hands of companies. They exercise almost all the management powers of the company. The corollary to this is that boards owe a duty to act in the best interest of the company at all times.

However, because boards can’t do all the works of the company by themselves alone, they appoint executive managers to help with the day-to-day running of the company. Company executives, therefore, are merely board functionaries. They’re accountable to boards. This also means that boards are, to all intents and purposes, ultimately responsible for the acts of company executives. Boards cannot assign their fundamental duty to act in the best interest of the company to executive management. From this, it is obvious that being a board member of a company is a rather serious and largely not so very attractive job.

As it stands now in this town, however, we have made board membership just too attractive. This is evidenced by the fierce fight that we put up for appointment to governing boards of companies and statutory bodies. Particularly, every 4 years, after the general elections, we witness something like a ‘board-rush.’ Strikingly embarrassing, however, is the fact that a lot of the persons who clamour for these boards have just no damn clue of what happens in the industries within which their preferred boards operate and, obviously, no clue of their board duties.

All they often care about are board salaries, sitting allowances, travel opportunities (affectionately called “trips”) and other perquisites. That’s not all. They’re also often preoccupied with the search for the illicit –  juicy opportunities for insider trading, contracts and job opportunities for non-qualified cronies, tribeswomen, party footsoldiers, boyfriends, etc. And guess what, in all this, we hardly hold board members in this town accountable for anything, ever, nothing! Rather, we reward them with more and more boards, terms in and terms out. We’ve sat aloof and watched boards ran down our companies, both state-owned and privately-owned, one after the other. Obviously, this has not helped us.

You see, there’s really nothing wrong with well-deserved, clean perquisites for board members per se. Because, it’s a damn hard, crazy, risky, hard job. And, indeed, elsewhere in developed economies, too, boards enjoy all these perquisites and even more. Unlike here, however, there, board members are held strictly to what is required of them. This bundle of requirements does not only include a duty to not lose value, it also includes a duty to increase value, sometimes, even with a set minimum rate. Because of this, boards, there, cannot afford to sleep on their power, be laid back or be merely ceremonial. There, board accountability regime is so stringent and, perhaps, so harsh that insurance companies, beginning from the 1930s, have devised insurance policies for indemnification of directors or their companies in case of liability.

We’ve reached a point in this town where board membership should be taken a little more seriously; where board accountability cannot be ignored any longer; and where board aloofness should be looked upon with hatred and fury. Indeed, recent developments in our economy, particularly with SSNIT, UT, Capital and, as we’re told, many more to come, are carefully leading us to the real cause of mismanagement and, perhaps, corruption in our institutions – governing boards. A focus on board accountability (and not just political accountability), therefore, may well be the breakthrough in our fight against mismanagement and corruption.

A Petition without a Petitioner is a Myth

CHARLOTTE5-01It is an abuse of language to even say that a petition is anonymous. Before we come to the veracity of this statement, however, let’s, first of all, distinguish between 2 situations: (1) where the investigative machinery involved in processing a petition is empowered to self-initiate its own investigative processes; and (2) where the investigative machinery is not empowered to self-initiate its own processes.

Suo Sponte

In the case where the investigative machinery is empowered to self-initiate its own investigative processes, it would not matter who initiates the process. That is because the machinery may do so by itself anyways. The draftswoman  must have a reason for not excluding the machinery. She, probably, thinks it doesn’t matter who starts it. For example, the police may, by themselves, commence investigation into a crime upon reasonable suspicion. They do not need a complainant in order to do so. For this reason, lack of a complainant, ordinarily, cannot be a defence to a criminal charge. It doesn’t matter who brings the plaint. We may, therefore, make a claim that the ascertainment of existence of an initiator is not necessary where the investigative machinery is empowered to self-initiate its own processes.

Indeed, the question of self-initiation, was at the heart of the difficult contention in the Anane case. In that case the issue was whether CHRAJ could, on its own, commence an investigation even without an identifiable complainant or petitioner. Those who believed that CHRAJ could, did so because they believed that CHRAJ cannot be useful unless it be given the power to invoke its own jurisdiction. As it turned out, the courts thought otherwise – CHRAJ could still be useful without having the power to self-initiate investigations under Article 218(a). It is therefore necessary to state, resoundingly, that the Anane case was never about anonymity of the petitioner. It has no direct application in the present case.

The second situation is where the machinery is not empowered to self-initiate its processes. In this situation, the question ‘who initiates the process’ becomes indispensable. It appears that the initiator’s existence must always be ascertained in order to kick-start the process. This is because, here (unlike the first situation), it is not any person who may initiate the proceedings. And, at least, we know that, here, the investigating machinery in question or its components are such persons who are not clothed with capacity to initiate the proceedings. The draftswoman must have a reason for this exclusion. She, probably, thinks it matters who brings the petition. So, for example, our courts do not have the power to self-initiate proceedings. For this reason, lack of an existing plaintiff is always a valid defence to court proceedings. It matters who brings the plaint. We may, therefore, make a second claim that the ascertainment of the existence of an initiator is necessary where the investigating machinery is not empowered to self-initiate its own processes.

But, even this second situation (where the ascertainment of the initiator is required), too, one needs to make another distinction between 2 sub-situations: (a) where the initiator exists and is disclosed; and (b) where the initiator exist but is not disclosed. Here, most adjudicatory bodies may allow a situation where the initiator, though existing, may not have her identity disclosed. This may be for a number of reason, e.g. where such disclosure may expose the initiator to some danger. But even here, the adjudicator would always have to ascertain the existence of the initiator. Therefore, the non-disclosure of an initiator who, in fact exists, does not take away from this second claim.

Article 146

Having set out the background, we may now have a discussion on the issue whether a “petition” which seeks the removal of a Justice from office (in this case, the chairperson of the Electoral Commission) under Article 146 of the Constitution, requires a petitioner. To be able to resolve this issue, it appears that one would have to, first, find out whether the investigating machinery (or its components) may self-initiate such removal proceedings.

Let’s note that the investigating machinery here includes, (1) the President (including the Vice President), (2) the Chief Justice, (3) any of the Justice of the Superior Court, (4) the Council of State and (5) the Judicial Council. Ordinarily, therefore, none of these persons, acting in such capacities, may initiate the process. Note, however, that the relevant component of the machinery here is the President. Therefore, the real question is whether the President may self-initiate the removal process.

At least, the tenor of Article 146 makes it very doubtful if the President could self-initiate the impeachment of a Justice of the superior court (and by extension, as in this case, the Chairperson of the EC). This is what 146(3) says:

“If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.”

In other words, unless a President “receives” a petition, the process cannot start. Obviously, the President cannot “receive” a petition from herself. This, therefore, may give us a deep insight into whether the ascertainment of the initiator is necessary. In this regard, we may call in aid our second claim which states that “the existence of an initiator is necessary where the investigating machinery is not empowered to self-initiate its own processes.” Accordingly, we may say that the ascertainment of the existence of the initiator is a prerequisite to the competence of the petition.

The Fable

But, I made an initial claim that “it is an abuse of language to even say that a petition is anonymous.” The basis of that claim is as follows:

The Oxford law dictionary defines a “petition” a “written application for a legal remedy or relief that is only available if statute or rules of procedure permit it. The dictionary goes on to give examples of petitions. It lists “a petition for divorce, a bankruptcy petition, an election petition, or a petition for winding up a company …” These examples may be instructive in helping us answer the question, may a petition be without a petitioner? In other words, may a divorce be sought without an existing petitioner? How about election petition? Bankruptcy? Probably not.

Secondly, the Black’s law dictionary, defines a petition as a “written address, embodying an application or prayer from the person or persons preferring it, to the power, body, or person to whom it is presented, for the exercise of his or their authority in the redress of some wrong, or the grant of some favor, privilege, or license.” This definition is apposite as relates directly to the historical antecedent of “petition.”

Under medieval English law and ‘forms of action’, a person usually petitions the King through the Lord Chancellor or the Exchequer for a “favour”, a “licence” or a “privilege.” This is in contradistinction with a “writ” which was the prescribed medium for asserting a “right.” A good example is where a person may petition the King for leave to be able to sue the King. This is because no one has the right to sue the King. You need the King’s “fiat” to be able to sue him. Indeed, those who are familiar with our legal history of law practice would know that this concept sipped into our law, where a person who wishes to sue the State had to first issue a process known as a “petition of right’ for the grant of a “fiat” in order to be able to issue a writ against the State. Let me, however, mention that this requirement is now abolished by Article 293(1) of the Constitution. So, now, you may sue the State without first issuing a ‘petition of right’.

This historical analysis may not be conclusive on the matter. However, it helps one to note that seeking a “privilege”, a “licence” or a “favour” necessarily requires that the grantor of such “privilege”, “licence” or “favour” knows the person who seeks and in respect of whom he would grant such “privilege”, “licence” or “favour”. Therefore, both definitions, when taken critically and within the proper context, makes the concept of “anonymous petition” rather fabulous, awkward and a little too disturbing at law.

For these reasons, I think, a petition, unless otherwise expressly excepted, must have a petitioner.

The Problems that Face Legal Education in Ghana are not Legalities

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Events of the past weeks have led some to believe that the problems facing legal education in Ghana are caused by non-compliance with laws. That belief is unfounded. In fact, legality is not even one of the problems. The real problems facing legal education in Ghana today include expired approach to teaching, poor teacher-student ratio, poor access to trending learning materials, weak research base and unworkable rules on admission to the bar. All these lead to a very hectic, costly, almost-oppressive and highly unpredictable legal education process.

Efforts at Solution

Varied efforts have been made by the General Legal Council (GLC) and other stakeholders to help solve the problems. These efforts include the construction of a new law school building at the University of Ghana (UG), the renovation of the Ghana School of Law (GSL) facility in Makola, plans to build an ultramodern GSL training facility at Legon, prohibition of non-PhD-holders from teaching law in UG, recruitment of more lecturers at both UG and GSL, etc. However, the most dramatic effort is what may be called ‘democratisation of the LL.B. program’. This saw a paradigm shift from the policy which gave exclusive mandate to UG to award the LL.B. degree to the current situation where almost every degree-awarding institution may.

However, the democratisation process did not come without its own attending challenges. It has seen more LL.B. degree holders willing to be enrolled at the bar than the GSL could admit for professional training. To solve this problem, the GLC had to increase admissions to the GLS from a little over 50 in the early 2000s to about 250 last year. This move also came with the creation, in 2011, of 2 outstation campuses of the GSL, one in Kumasi and another in eastern Accra. At a point, the GSL also used a quota system of admission, where each LL.B. awarding university was given a quota in respect of the number of their LLB graduates to send to the GSL.

Automatic Admission

From this background, it may be pretty much obvious that the problems facing legal education has grown in genre and scope, giving birth to all manner of activists trying furiously, though in good faith, to fight for change. It is, however, even more obvious that the problem that concerns the activists most is not any of the above, but rather one that has to do with the number of persons that may be admitted to the bar each year. This claim is evidenced by events characterising this year’s GSL admission process, where activists have asked that all the over 3,000 LL.B. holders in Ghana be admitted to the GSL without any further criteria for scrutiny.

There may be many arguments in favour or against the automatic admission campaign. However, only a very few persons may deny the fact that the campaign is mono-dimensional as it seems to have no regard for the other more serious problems facing legal education in the country, e.g., quality of training. Indeed, one may even say that the automatic admission campaign bears strong features of fundamentalism and overly-generous obsession with high numbers and only diverts attention from the more serious problems.

Deinstitutionalisation

Another call that is often made towards the resolution of the problem is one which calls for deinstitutionalisation of the professional bar training program. This call would see the abolishing of the GSL and the reconstitution of the GLC’s Board of Legal Education into an examination (rather than a training) body. Of course, this appears to be a more progressive approach when all is said and done. The question, however, is how the deinstitutionalisation approach would resolve the number problem, which it is often proffered to solve?

In answering this question, the apostles of deinstitutionalisation would say that the teeming number of universities running law programs would develop the capacity to absorb and handle the numbers. This is true; but only true if one assumes that the law student’s only and ultimate interest is having legal training for the sake of it. The argument hardly speaks to the issue of numbers when taken in its proper context, which is that the average law student’s ultimate interest is to become a lawyer and not just to have legal training. To become a lawyer, the law student must move beyond professional legal training (to be offered by the universities) to being enrolled at the bar. Therefore, while the various universities may have the capacity to offer professional legal training to the teeming number of persons seeking to become lawyers, they have no power whatsoever to determine which or how many of their many graduates end up becoming lawyers.

The power to admit persons to the bar vests solely with the GLC. This also means that it is only the GLC (not the universities) that could resolve the number issue. It also means that no serious progress could be made in respect of numbers unless the GLC is convinced that Ghana needs more than the current 250 new lawyers being admitted in a year. From this background, therefore, the deinstitutionalisation approach, like its predecessor democratisation of LL.B. approach, unless coupled with a deliberate and concerted effort at convincing the GLC to increase the number of persons admitted to the bar, would merely portend another situation where an army of “trained lawyers” would wait in agony and frustration, perhaps, forever to be admitted to the bar.

Way Forward

Going forward, it behoves stakeholder of legal education in Ghana to take steps to have a comprehensive dialogue leading to practicable proposals to the GLC in respect of the following:

  1. Preferred teaching approach in law schools;
  2. Minimum qualification for law teachers;
  3. Minimum qualification for admission to the LL.B. program;
  4. Accreditation criteria for institutions that will award LL.B. degrees;
  5. Deinstitutionalisation of professional law training program;
  6. Ghana’s need for lawyers, leading to an objectively determined number of lawyers to be admitted to the bar each year for the next 10 years;
  7. Effective pupillage program; and
  8. Cost of legal education.

The stakeholders to this dialogue should include the following:

  1. The General Legal Council,
  2. The Ghana Bar Association,
  3. The National Accreditation Board,
  4. Deans and directors of law faculties and schools;
  5. The National Union of Ghana Students (and law student associations),
  6. Law teachers’ associations, and
  7. Proprietors of law schools.

Conclusion

In all, it may not be false to say that the current agitation over the number of persons to be admitted to the Ghana bar would see no end until and unless the GLC is convinced with credible evidence that Ghana needs more lawyers than the current rate of enrolment. Such evidence, sure, would not come from dry legal arguments of doubtful integrity. Such evidence may only be had from sound economic, social and political policy analysis and considerations.

Of Asare v GLC: Our Veritable Octopus Supreme Court

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Our Supreme Court has done it again! It seems to have behaved like the proverbial ‘veritable octopus,’ stretching its tentacles to assume jurisdiction over a matter which is clearly out of its original exclusive jurisdiction. As if that was not enough, the Court has given a judgement that has successfully entrenched the common-held view that the honourable Court is in a dire need of consistency and judicial humility.

This note seeks to show that the Supreme Court did not have jurisdiction over the Asare v General Legal Counsel & Ors in the first place.

Judicial Review Generally

Article 2 of the 1992 Constitution codifies the doctrine of judicial review as established by the landmark case of Marbury v. Madison (1803). In that case, Justice Marshall stated that:

“If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

The essence of this statement is that the Constitution is the sole standard for exercising a supreme court’s power of judicial review. It is exactly this doctrine that is codified in Article 2 of our Constitution.

Judicial Review in Ghana

So, Article 2(1) says that:

“A person who alleges that (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

From this provision one may glean out the following elements, which must be satisfied in order to successfully invoke the Supreme Court’s Article 2 jurisdiction. In other words, for a plaintiff to invoke the Article 2 jurisdiction of the Supreme Court, she must show the following:

  1. That there is an allegation of violation;
  2. That that allegation of violation is in the form of:
    • A contravention, or
    • An inconsistency;
  3. That the alleged violation stems from at least 1 of 2 principal sources, namely:
    • From an enactment; or
    • From a person.
  4. That where the alleged violation stems from an enactment, it is either:
    • From the content of the enactment (without more); or
    • From a conduct done under or pursuant to the authority of an enactment.
  5. That where the alleged violation stems from a person, it is either through:
    • A person’s action; or
    • A person’s inaction.
  6. That whatever nature the alleged violation may take from 1 to 5, it should be a violation of the Constitution and nothing else.

In fact, that is the reason why Article 2 claims must always allege an unconstitutionality – meaning the constitution (and nothing else) is the sole standard of evaluation.

Un-constitutionality

It is true that any illegal act or omission may also be a violation of one of the many principles in the Constitution, but it would be an abuse of language and, of course, the concept of judicial review to suggest that a person who steals my iPhone has committed an unconstitutionality, having violated my right to property under Article 20 of the Constitution.

It is exactly the prevention of this possible abuse (of every legal wrong coming to the Supreme Court for judicial review) that the Supreme Court itself insists strongly in a long line of cases that where the Supreme Court has concurrent jurisdiction with another court over a matter, the Supreme Court would relinquish jurisdiction to that other court. In fact, it is for this reason that the Supreme Court’s Article 2 jurisdiction called “exclusive original jurisdiction.”

Asare v GLC Jurisdiction

Now, the question is this: what is the dominant feature of the violation which the Plaintiff in Asare v GLC & Ors. alleged? To all intents and purposes, the allegation is primarily one which says that the defendants have acted, are still acting and, unless restrained, would continue to act outside their enabling Act, Act 32, or its subsidiary legislation, L.I. 1296. And, even though such violations may derivatively result in an inconsistency or even a contravention of a principle in the Constitution, it is an abuse of the term ‘judicial review’ to suggest that that act or omission is unconstitutional.

In other words, the Supreme Court, as a matter law and in accordance with its own established jurisprudence, did not have and should not have assumed an exclusive original jurisdiction over the plaint. The plaint should have been referred to the High Court which has original jurisdiction to determine such administrative (rather than constitutional) matters.

Conclusion

Until and unless the Honourable Supreme Court begins to take some of these jurisdictional issues more seriously, it would continue to exude an air of inconsistency and judicial tyranny, while at the same time weakening not just itself, but also all the Courts and other administrative bodies below it.

Of Dual Citizenship and Allegiance: Emotive or Juridical

12715-Dualnationalitypassport-1342092104-492-640x480Apparently, there is a raging social media debate on Article 8 of the Constitution. That Article allows Ghanaians to be dual citizens. However, it bars dual citizens from holding certain public offices. For example, a dual citizen cannot become President or Vice, Ambassador or High Commissioner, Member of Parliament, Inspector-General of Police, Chief of Defence Staff, etc.

Dual Citizen

A dual citizen is a person who is a citizen of two countries. Within this context, a Ghanaian is a dual citizen if he holds the citizenship of a country in addition to that of Ghana at the same time. The beginning point of the discussion (which is also the basic rule) is that every person automatically owes allegiance to the country of which he is a citizen. This also means that a dual citizen owes allegiance to two (or more) countries. At the core of the discussion, therefore, is the question of ‘allegiance.’ Consequently, one’s understanding of ‘allegiance’ within this context is very fundamental to the discussion. I’ll be explaining ‘allegiance’ very soon; but before that let me just quickly scope out the debate.

The Debate Sides

One side of the discussion – the inclusion view – argues that there is no real gain in barring dual citizens from holding these public offices. To them, dual citizens, if allowed to hold these key offices, may well be the solution to Ghana’s endless train of problems. This is because duals have enormous talents and expertise which they could bring to bear on those offices. “Without occupying those offices,” the argument goes, “dual citizens can’t contribute sufficiently to solving Ghana’s problems.” Based on this, the inclusionists accuse the exclusionists as inward-looking folks who fear competition.

The other side of the debate – the exclusion view – defends the bar as very helpful in preventing treachery. To the exclusionists, a mono-citizen cannot or is less likely to betray his country than a dual since he owes allegiance to only one sovereign. To the treachery argument in particular, the inclusionists would retort that in a country where poverty is rife, a mono could more easily betray her country than a dual. Indeed, that may be very true, considering the way boys are hungry these days, they could sell anything. The exclusionists’ pushback is that: well, if you think dual citizenship doesn’t have a downside, then, single citizenship would also not have an advantage; so, nationality as a whole shouldn’t matter in getting people into public offices – let’s just throw all these nationality issues away and look for competence only, even for the presidency!

I, myself, am confused as to which side of the debate to belong. Therefore, the purpose of this short note is not to suggest, propose or indicate, even remotely, the better of the two sides. I only wish to, in my own small way, make the debate a little more informed.

Allegiance not an Emotive Concept

Okay; as one could already observe from these snippets of arguments, both sides of the discussion have been very creative, committed and forceful in making their case. Interestingly, these snippets of arguments also tell us that their forcefulness, though admirable, is premised on an honest misconstruction of the most critical element in the discussion – ‘allegiance.’ They seem to give ‘allegiance’ an emotive meaning only. To them, allegiance is the feeling of loyalty, fidelity or faithfulness towards a country. So, they often use football game to illustrate their arguments whether for or against. They ask questions like: how would Milovan Rajevac feel while coaching Ghana in a football match between Ghana and his country, Serbia (I think, I saw this one in the Asare v A-G case or so)? They also would ask – how did Jerome Boateng feel about playing for Germany against Ghana?

Indeed, how a person feels in these situations matters in measuring their output and commitment. However, I’m not particularly sure how that feeling translates into how ‘allegiance’ is determined in this context. I’m encouraged to say that ‘allegiance’ as used within the context of citizenship is too serious a matter to be left to feelings and emotions; not least because there is no art to find a man’s feeling on his face.

Allegiance is Juridical

‘Allegiance’ go way beyond these emotive attributes. It doesn’t simply connote a feeling of indebtedness, fidelity or loyalty. Rather, the word carries with it a bundle of well-defined legal incidents and consequences. It usually entails defined duties of a citizen to her country. It equally entails the rights of a country to punish the citizen should she fail in performing those duties. It speaks directly to the question of State protection to citizens as well. At law, it is what a citizen gives in return for the protection that her country provides her.

For instance, a citizen has a duty to defend the constitution of his country and, usually, to defend the government which is, for the time being, in place. On the other hand, the country has the right to commit the citizen for treason and punish her as such should she do anything that betrays this duty. It goes without saying, too, generally, that a non-citizen cannot commit treason – he doesn’t owe allegiance to the sovereign in question. This is a well-established rule under both domestic and international law. To this end, a person’s allegiance to a country is determined by such objective (rather than subjective or emotive) criteria as citizenship, domicile, etc.

So, in Carlisle v. US (1872) for example, a group of aliens were manufacturing and selling gunpowder to the rebel Confederate army to enable them overthrow the federal government. These guys were doing pure business. They didn’t have any special feeling towards any of the waring parties. As a matter of fact, they could and were ready to sell to both sides. The US Supreme Court held as follows:

“He who, being bound by his allegiance to a government, sells goods to the agent of an armed combination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is himself guilty of treason or a misprision thereof.” 

Of a more current and comprehensive help is the English case of Joyce v DPP (1946). Here the accused person, an American citizen who also held British passport was caught translating English news for the Nazi during World War II. No one knew his feelings. The key issue that came before the House of Lords was whether a person who held a passport (but who is merely a naturalised citizen) owes allegiance to His Majesty, the King of England. Answering this question, Lord Jowitt LC said:

“In these circumstances, I am clearly of the opinion that so long as he holds the passport he is within the meaning of the statute a man who, if he is adherent to the King’s enemies in the realm or elsewhere commits an act of treason.”

Joyce v DPP is also the authority for saying that passport is conclusive evidence of allegiance; so that an MP who holds a passport of another country owes allegiance to that country, for which reason she should be removed from Parliament and punished for perjury.

From these 2 cases alone (and there are a litany), I’ve found that ‘allegiance’ is a juridical (rather than emotive) construct. It’s not determined by the subjective criteria of how the person really feels about a country, but rather by clearly stated objective criteria of facts, law or facts mixed with law – citizenship, holding of passport, domicile, etc, – all of which entitles a person to the protection of the sovereign. This is no brainer, the fact that a person feels great about Russia doesn’t mean that he owes allegiance to Russia. And the fact that you’re Gambian doesn’t also mean that you feel love for the Gambia; but you’re held at law, conclusively, to owe allegiance to the Gambia. How, then, may one justify the claim that ‘allegiance’ is an emotive concept?

Countries and Dual Citizenship

A dual citizen may be likened to a servant of two masters. His acts don’t really affect him. They more affect the relationship between the two masters. It also has the potential of limiting what each master may do in respect of this dual-servant. Masters don’t like that. Because of this, even the most liberal countries of the world look at dual citizenship with suspicion. It has always been the case. So, the US Department of State, for instance, would say “the U.S. Government does not encourage dual nationality … Claims of other countries upon U.S. dual-nationals often place them in situations where their obligations to one country are in conflict with the laws of the other.” In fact, other countries don’t allow it at all.

Illustration: What if your energy minister was a dual citizen – Ghanaian and American; and, then, the US (as it usually does) bars its citizens from dealing with the GNPC and Ghana Gas Limited. This, obviously, would have nothing to do with how the minister feels about Ghana or the US. Ghana would have to choose between extraditing the minister to the US (and fail in its primary duty to protect its citizen) or keep him here to continue working with GNPC (and face international sanctions from the US). This is just one of the ways in which dual citizenship may frustrate the relationship between two countries.

Okay, I have to go now. Having said this, I believe the debate could proceed.

WHY LAWYERS CAN’T ADVERTISE IN 21ST CENTURY GHANA

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It is outrightly unlawful for a lawyer to inform the pubic of his previous successes in his professional practice with the aim of attracting briefs in the future. This is because Rule 2 of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (LI 613) prohibits lawyers from touting, advertising or otherwise doing anything that may be seen “as calculated to attract business unfairly.”

Today, many consider the Rule as a senseless piece of legislation which is, “archaic” and “greatly inimical to the development of this country” in the sense that it “forces all lawyers to scramble for space under the wings of old and established law firms” and deprives citizens of the “right to know about the law firms available and the kinds of services they offered.

Interestingly, while some call on the incoming Chief Justice, Her Ladyship, Justice Sophia Akuffo, to “break this old curse,” the former President of the African Court on Human and Peoples’ Rights rather boldly announced at his vetting in Parliament how “distasteful” she finds the campaign against the rule. Clearly, if this rule would be scrapped, it definitely won’t come from the General Legal Council of which Her Ladyship would be head for the next two or so years.

But, what at all is the basis or essence of this rule? Well, one could not understand the Rule’s utility unless we wind back our minds to pre-medieval England; that is to say, the years immediately preceding 1400 AD.

A great point to approach history, they say, is to begin from the known to the unknown. Most of us are familiar with the chorister’s or the academic robe. The main difference between these robes and a lawyer’s is that the later has a stupid piece of violin-shaped cloth attached to the back of its left shoulders with a long silly strap running along the left breast down to the feet. The former robes don’t. That piece of cloth at the shoulders is cut into a pair of cute little sacks. These sacks used to be the money sack for lawyers – one for silver coins the other for gold. It’s actually called the “money bag.”

The theory behind this mysterious pair of sacks was that law practice was purely a noble selfless public service profession. It was neither for money nor for profit. Because of this, lawyers could never charge fees. In fact, it is said that “the gentlemanly barrister would not lower himself to ask clients for money.” Clients only made voluntary ex gratia donations which they surreptitiously dropped into these sacks. Remember, the pair of sacks hang loosely behind him; meaning he could not feel, know or be influenced by how much a client dropped in. Money was completely irrelevant!

Now the catch: since professional law practice for most part of its life was noble and not for profit, open competition was never a sensible thing to do, entertain let alone encourage. Therefore, it made sense to prohibit touting and advertising among lawyers. As a matter of fact, advertising or touting was as ignoble, base and unprofessional as asking clients for money. This is the only (if not the main) reason why Rule 2 exists in Ghana in 2017.

Assuming (without admitting) that this medieval reason for the Rule is still valid in this IT age, the question, however, would be: why does the General Legal Council find it noble for lawyers to now lower themselves and ask clients for money but ignoble for them to advertise their services? Perhaps, the answer to this question would never come.

6 WEEKS: THAT ONE TOO, IS IT MATERNITY LEAVE?

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I had a discussion with my friends on Facebook yesterday. The discussion was over the news that Rwanda’s Parliament has reduced the minimum period of maternity leave (ML). The general sentiments I gleaned from the comments on the post which broadcast the news ranged from mild disapproval, through shock to extreme anger. Of course, that is understandable – rights may be enlarged (not abridged).

Most of the commenters on the post seemed to hold the view that longer ML is mainly beneficial to the mother involved. Reducing it, therefore, is to her disadvantage; and should not be countenanced. I made a few comments under the post but lost track of the discussion due to the speed at which the comments came raining in (and, probably, even due more the bread-n-butter issues at hand at the time). So, I decided to rather do a blog skirting my views on the matter.

Let me begin by saying that the advantages of ML cannot be overemphasised. And, on the question of who, between the employer and the mother, benefits most from longer maternity leave, I seem to have a slightly different view. Having managed workers for some time now, I have no doubt whatsoever in my mind that ML is even more beneficial to the employer than to the mother involved. Trust me, there is no point having “at work” a worker 98% of whose already-tired attention is on her child several miles away back home.

However, we will be either arguing fundamentalism or be a little too naive to base our analysis of the issue of ML duration on the above dimension only. I think the other critical dimension to the issue is the practical challenge that attends the private small-scale investor-entrepreneur employer, whose primary focus is to make returns on her already small capital within the short term in a wobbly economy like ours.

The primary aim of women’s right activists like us is to afford as much dignity and relief as possible for mothers at all times. But, the entrepreneur, particularly those in our highly perilous third world economies characterised with massive unemployment rates, is so much unlike us. He is faced with 2 real economic options: to either (1) employ a male who will work around the clock all year for many years; or (2) employ a female who will take 6 months ML in every 2 years on the average. Starkly faced with this reality, a private employer (even with substantial women’s rights acumen, would not find a difficulty in making a choice – employ a male worker.

So, if Rwanda, which has the most female-dominated Parliament in the world, decides to make a law reducing maternity leave from 13 weeks to 6 weeks (as I understand it), they probably are trying to solve another serious problem – female unemployment.

Workplace crèches and nurseries are often proposed as one of the solutions to the problem. That is cool, because the mother is will focus more on work, knowing that her child is just steps away. But that, too, would hardly be a prudent economic option for our small-scale employer employing 3 to 5 women who may not all be breastfeeding at the same time.

This brings to mind one other point – paternity leave (PL): You see, one of the great but less-cited advantages of PL is that it leaves the employer with no real advantage of employing a man over a woman, all things being equal. Indeed, PL does check gender discrimination in employment situations 🙂

Photo credit: Golda

MUSING MARXISM: PUBLIC ELECTIONS

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In my previous note on this issue, I mused in support of the claim that that a constitution does not represent the true aspirations, values or ideals (ideas) of the whole of the people as we are often made to believe. I explained that a constitution is, rather, a bundle of the ideas of the ruling class of the time. A constitution is also a parochial arrangement between and among the ruling class only.

That arrangement expressly excludes the ruled, the masses, from the government of the polity. In order to pacify the masses (for excluding them from government), the ruling class invented a mechanism called ‘regular election,’ where the masses are allowed to choose one ruling class from the others. Like a typical idea of the ruling class, regular election is constitutionalised.

In this note, I will use Vladimir Lenin’s analytic to explain why election is a sham just as the constitution which contains it.

According to Lenin, “the oppressed are allowed once every few years to decide which particular representatives of the oppressing class are to represent and repress them.” By this statement, one may notice that Lenin divides society into 2 classes: (a) the oppressor-ruler-politician; and (b) the oppressed-ruled-voter. This division, itself, is in accordance with classical Marxist theory which finds an ongoing struggle between the two classes.

If Lenin’s statement is anything to go by, then, one may say that any person or group of persons who, habitually, put themselves up for election to a public office fall within the oppressor class. By this stretch, one may notice, too, that political parties and their leader, whether in power or in opposition, are oppressors; the only difference being that those in power are oppressors at present while those in opposition, are oppressors in waiting.

Coming home, there are 2 main political parties in our polity – the NDC and the NPP. Both parties have ruled the polity and have, at all material times, maintained their readiness to rule. By this, we may say that the two parties have attained the minimum level of harbituality required to be classified as a part of the oppressing class – the NDC at present and the NPP in waiting.

So, once every four years, we are allowed by our Constitution to, through election, decide which of the two divisions of oppressing class, the NPP or the NDC, is to represent and repress us, the people, for the next four years.